Volume 62 — Kentucky Reports

<p>CASE 1 — FORFEITED RECOGNIZANCE</p> <p>cited Criminal Code, secs. 80, 92, 94, 89, 88; 1 Met., 382; 3 Met., 3.</p>

<p>CASE 2 — MOTION</p> <p>cited Civil Code, sec. 20; 2 Rev. Stat., 408.</p>

<p>APPEAL FROM THE WARREN EQUITY AND CRIMINAL COURT.</p> <p>1. See the opinion for the facts stated in the indictment.</p> <p>3. The indictment charges a conspiracy to commit a felony, which was consummated by the actual commission of treason against the State; and the conspiracy being a mere misdemeanor, is merged in the higher crime of treason. (5 Mass. Rep., 108.)</p> <p>3. A conspiracy to commit a misdemeanor may not merge in the misdemeanor when committed.</p>

<p>APPEAL FROM PULASKI CIRUUIT COURT.</p> <p>1. A sheriff was elected to two successive terms, the first of-which expired on the-first Monday in January, 1853. In 1852 an execution was levied by him on property ; and in November of the same year a writ of venditioni exponas issued, which he foiled to return till April, 1853. Held — That the duty of executing the writ was devolved on the sheriff by his jfosítevm ; and that the bond sued on (executed in January, 1853) relates only to his second term, and did not bind him or his sureties for the performance of that duty.</p> <p>2. A wait of venditioni exponas gives no new authority to the sheriff, but merely commands him to perform his duty under the original writ.</p> <p>3. He who begins the execution of a writ of fieri facia, must end it; a sheriff who-levies upon property may sell it after the return day, and after returning the execution, without a venditioni exponas, and after he has gone out of office ; and it is his duty to do so. (4 Bibb, 94 ; 2 J. J. Mar., 42 ; 4 B- Mon., 241 ; 3 Bibb, 344; 5 Hits., 42; 5 JJana, 337; 12 Penn. Rep., 360.)</p>

<p>CASE 5 — PETITION EQUITY</p> <p>cited 4 Dana, 158.</p>

<p>APPEAL FROM FLEMING CIRCUIT COURT.</p> <p>A note executed by sureties for the purpose of enabling the principal to raise money thereon, and which is used for that purpose, is binding on the sureties, although the money be obtained, not from the payee, but from another. (14 B. M., 351; 16 B. Hi., 201.)</p>

<p>CASE 7 — RECOGNIZANCE</p> <p>cited Grim. Code, secs. 67, 68, 80, 77; 1 Slat. Law,p. 198 ; 3 Blackstone, 128 ; 2 Com. Dig., p. 3 ; 18 B. Mon., 29 ; 1 Met., 389 ; 2 Met., 385; 1 Dana, 165 ; 22 Ills. Rep., 226.</p> <p>cited Grim. Code, secs. 80, 88, 92.</p> <p>cited Grim. Code, secs. 67, 68, 77, 80,81,94,96, 184,227; 3 Met., 415,382 ; l Rev. Stat., 323,313; Hardin, 504, 505 ; 2 Dana, 139; 7 Dana, 243 ; 1 B. Mon., 70.</p>

<p>APPEAL FROM MONTGOMERY CIRCUIT COURT.</p> <p>The policy of this State forbids it# courts from aiding either of the parties to a contract for the sale or purchase of Confederate notes.</p>

<p>CASE 9 — PETITION ORDINARY</p> <p>eited 1 Rev. Stat., p. 428.</p>

<p>APPEAL FROM UNION CIRCUIT COURT.</p> <p>The comprehensive provisions of the Revised Statutes were designed to govern all proceedings against sheriffs, constables, &e., for money collected by them, and to make a demand necessary, whether the plaintiff claims damages or not, and without reference to the place of his residence. (Rev. Stat., sec. 3, art. 18, chap. 36; lb., sec. 2, art. 4, chap. 20.)</p>

<p>APPEAL PROM THE FRANKLIN CIRCUIT COURT.</p> <p>Upon an indictment for a misdemeanor, a judgment may be rendered against the defendant by default. (Grim. Code, secs 158 to 171, inclusive.)</p>

<p>APPEAL FROM PENDLETON CIRCUIT COURT.</p> <p>1. The sale, in August, of a growing crop of tobacco — the seller to cultivate it and deliver it to the purchaser by the 1st March following — is not constructively fraudulent as to creditors or subsequent purchasers, merely because the seller retained the possession.</p> <p>2. See the opinion for a statement of the general rule of fraud per se, and the exceptions to which the rule is subject.</p>

<p>CASE 13 — PETITION ORDINARY</p> <p>cited 3 Met., 287; 5 Mon., 6; 1 Mon., 98; 4 Mon., 452; 7 B. M., 610; 3 J. J. M.,8; 8 Dana, 28 ; 5 J. J. M., 245.</p>

<p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>1. In an action against two of three joint and several obligors, one of the defendants pleaded payment by the obligor who was not sued, and without disposing of that issue, judgment was rendered against the other defendant by default. Held— That the judgment was erroneous.</p> <p>2. Before the adoption of the Code, in an action against several defendants upon a joint, or joint and several obligation, the discharge of one defendant on a plea of non est factum, or other personal ground, did not defeat the plaintiff’s right to judgment against the others ; otherwise where the discharge was on a defense which extinguished the demand, as payment, release, &c.</p> <p>3. The Code (secs. 392, 399, 402) has not changed this rule ; and, in a joint action against several, a plea of payment by one presents a defense for all.</p>

<p>CASE 15 — PETITION EQUITY</p> <p>cited 7 Dana, 92; 5 /. J. M., 762; 5 Mon., 269; 7 B. Mon., 226.</p>

<p>CASE 16 — PETITION ORDINARY</p> <p>cited Rev. Stat., title Elections, pp. 443 to 448; Civ. Code, secs. 532,533 ; ■Con. of Ky-, sec. 4, art. 8 ; 13 B. M., 521; 19 Howard, S. C. R., 405; Debates in Convention, 587, 602; 1 Stat. Law, 671; 1 Litt., 265; Act of 18.62, Sess. Acts,p. 23; 16 Johns., 439.</p> <p>cited Rev. Slat., jrp. 432, 433, 434, 431, 444; 18 B. Mon., Benit Mil. Law and Ct. Mar.,p. 14.</p> <p>cited 13 B. M., 517 ; 16 B. M.; 1 Met.-, 538.</p> <p>cited 1 Rev. Stat.b pp. 441, 439; Ky. Con., art. 2, sec. 8; art. 6, sec. 2; art. 8, sec. 4; 1 Rev. Stat., p. 453 ; 33d Art. of War.</p> <p>cited 13 B. Mon., 517; 16 ZL Mon., 547.</p>

<p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>1. The only change introduced by the act of March, 1862, “ to amend the law of limitations of actions for usury,” was to reduce the period within which actions for usury might be brought, from five years to one year. (Sess. Acts, 1061-2, 105.)</p> <p>2. The act does not deprive the borrower of the right to treat payments of usury as payments of the principal and legal interest as long as the debt remains unpaid, nor give him a right of action to recover back such payments until the entire debt is discharged. (5Dana, 83 ; 5 B. Mon., 93 ; IB. Mon., 440.)</p>

<p>CASE 18 — PETITION ORDINARY</p> <p>cited Civil Code, secs. 259 et seq., 264, 273, 221, 858, 474 to 478, 477, 449, 225, 228, 233, 13, 255, 424.</p> <p>cited Civ. Code, sec. 233.</p>

<p>APPEAL FROM WOODFORD CIRCUIT COURT.</p> <p>1. A guardian assigned to her ward, on his arrival at age, a note on which usurious interest had been paid to her, and which note the obligors subsequently took up by executing a new note to the ward. In action by the latter on the new note, the defendants have no right to set up, by way of defense or counter claim, the usury paid to the guardian.</p> <p>3. The execution of the new note to the assignee was a payment and discharge of &he first note. (3 J. J. M., 12.)</p> <p>3. The assignee having received the first note from his assignor for a valuable consideration, is not contaminated with the usury, and by taking the new note he changed the security for his debt and released Ms assignor from liability, and the debtor must resort to his action against the assignor for the usury paid.</p> <p>4. In an action against several eo-obligors, one of the defendants eannot set up as a counter claim or setoff, a note on the plaintiff held by another defendant.</p>

<p>APPEAL FROM POWELL CIRCUIT COURT.</p> <p>1. In an action for slander, the words, “he, the defendant, had had sexual intercourse with the plaintiff at divers different times,” are actionable, and the plaintiff need not allege nor prove special damages. (1 Rev. Stat., sec. 1, p: 179 ; 1 Litt., 64 ; 2 Litt., 163.)</p> <p>2. A judgment for the plaintiff, in slander, does not bear interest from its date. (2 Rev. Stat., sec. 6,p. 65.)</p>

<p>CASE 21 — PETITION ORDINARY</p> <p>cited Rev. Stat., secs. 1,2, of art. 3, chap. 86.</p>

<p>APPEAL FROM THE JESSAMINE CIRCUIT COURT.</p> <p>1. See the opinion for a statement of the facts held sufficient to subject a judge of an election to damages for unlawfully refusing to receive the vote of a qualified voter.</p> <p>2. The motive and intent with which an act is done, is a matter of presumption, depending on the nature of the act, and the circumstances attending its commission. (1 Greenleaf, secs. 33, 34.)</p> <p>3. A judicial officer of any grade who knowingly and willfully renders a decision contrary to law, must be presumed to have acted from a bad motive, and proof of the act will, of itself, authorize the jury to presume the motive. (18 B. Mon., 494, 693.)</p>

<p>CASE 23 — PETITION ORDINARY</p> <p>cited 2 Parsons on Contr.,p. 302 <md notes', Smith on Contr.,pp. 166, 123, 142; 7 B. M., 6.</p>

<p>CASE 24 — PETITION EQUITY</p>

<p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>1. No particular form of words is necessary to create a separate estate. Any words which clearly show an intention to do so are sufficient.</p> <p>2. See the opinion for words iu a will held sufficient to create a separate estate.</p>

<p>CASE 26 — PETITION ORDINARY</p> <p>cited 1 Met., 218; 13 B. M., 392; 18 B. M., 537; 28 Penn. Stat. R., 189,447; 20 Barb., 455; 6 Indiana, 478; 2 Met., 297; 1 Met., 570; 2 Met., 558; 3 Met., 314.</p> <p>cited 3 B. M., 465; 1 Met., 213.</p>

<p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>1. The payee of a note assigned it in the following words: “Value received, I assign this note to Owen W. Walker, and if not paid I bind myself to pay it.” In a joint action against the two obligors and the assignor, there was a judgment, by default, against the assignor only. Held — That sec. 114 of the Code does not apply to cases of misjoinder of parties, and that an objection to a petition on that ground can be taken advantage of only by motion to strike out the name of the party improperly joined. (18 B. M., 132.)</p> <p>2. If the assignment was made before the maturity of the note, the assignor’s liability accrued at its maturity; if made after maturity, his liability accrued within a reasonable time thereafter. (4 J. J. M., 72 ; 1 Dana, 609.)</p>

<p>APPEAL FROM HICKMAN CIRCUIT COURT.</p> <p>1. At common law, a stranger cannot sue a deputy sheriff for breach or non-performance of official duties. The principal sheriff is liable to the party thus injured, and the deputy is liable to his principal. (4 Bibb, 494.)</p> <p>2. The Commonwealth has no right of action against a deputy sheriff for failing to pay into the treasury public revenue collected by him ; but the principal sheriff and his sureties are, in such case, liable. (R. S., ch. 83, art. 12, sec. 16.)</p> <p>3. The statute gives the Commonwealth a lien upon every sort of property, including choses in action, in which a sheriff or his sureties have a legal or equitable interest.</p> <p>4. The sheriff’s claim on his deputy is a chose in action, on which the Commonwealth, having obtained judgment against the sheriff, has a lien ; but where the deputy is also surety of the sheriff, and has been compelled, as such, to pay money for the latter, before the Commonwealth’s lien attached, the sum so paid is a valid set-off against the Commonwealth or its assignee.</p>

<p>CASE 29 — INDICTMENT</p> <p>cited 1 Rev. Stat., 388, 469 ; Wharton’s Am. Crim. Law, 584 ; 4 Bos. P., 92 ; 2 Leigh., 745; 1 Russell on Crime, 85 ; 2 Phill. Ev., 462, and notes ; 3 Archhold, 577 ; 2 Humph., 78.</p>

<p>APPEAL PROM CLARKE CIRCUIT COURT.</p> <p>1. Where the payor and payee of a note are of the same name, it must be presumed, in behalf of an assignee of the note, that they are different persons. The legal presumption is in favor of the validity of the contract.</p> <p>2. In such ease it is not necessary for the plaintiff to aver that the defendant and payee are different persons. The fact that they are the same person is matter of defense properly coming from the other side.</p> <p>3. The plaintiff assigned the note pending- the action, and he and his assignee filed an amended petition alleging that fact. A judgment in favor of the plaintiff was a clerical misprision, and besides, was not prejudicial to the defendant. (2 Met., 302.)</p> <p>4. Where, in an action on a note, the only defense is usury, and the verdict was “ we of the jury find for the plaintiff,” the court properly rendered a judgment against the defendant for the amount of the note with interest (Code, sec. 416.)</p> <p>5. Section 539 of the Code relates only to oases involving questions of value and damage, as questions of fact. As a general rule the jury must, in such cases, assess the amount of recovery.</p>

<p>APPEAL PROM THE PAYETTE CIRCUIT COURT.</p> <p>1. M. sold to H. certain real estate for $3,500. In the contract it was stipulated that if, at the expiration of three years from date, H. should desire to sell said real estate, M. would, upon request of H-, purchase the same at the price of $3,500. H. failed to make the request until nearly a month after the expiration of the three years. Held — That this was not such a compliance with the contract as to give H. a right to enforce it, either at law or in equity.</p> <p>2. Equity will not ordinarily regard time as of the essence of a contract for the sale of land ; but where there is a want of mutuality in the obligation, time is essential in equity as well as at law. (2 B. M., 439; 1 Johns. Ghy. Rep., 282.)</p>

<p>CASE 32 — MOTION</p> <p>cited Hard., 64; 4 Bibb, 22; 3 Mon.,294; 3 Marsh., 350 ; 4 Dana, 268 ; 2 Dana, 227.</p>

<p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>1. An immaterial alteration in a bond or note will not vitiate it. (18 B. Mon., 328; 1 Met., 58 ; 5 Mass. Rep., 538.) Nor will a. material alteration, if made by a stranger to the bond or note, and without the participation of any party interested, invalidate it. (9 B. Mon., 25.)</p> <p>2. In a bond given by the proprietor of a tobacco warehouse in Louisville, under the act of 1859, regulating the inspection and sale of tobacco in that city, the striking out of the word “ February,” and insertion of the word “ March,” after its execution, did not affect the obligations or duties of the parties, and was therefore immaterial.</p> <p>3. When defendants signed the bond, the name of Stockton appeared in the body of it, and had also been signed thereto ; and they, knowing S. to be solvent, and his signature genuine, also signed it; but it turns out that the signature of S. was a forgery. Held — That these facts constituted no defense. (16 B. Mon., 556 ; 4 Watts, 22; 10 B. Mon., 266 ; 1 Met., 58.)</p>

<p>APPEAL PROM PAYETTE CIRCUIT COURT.</p> <p>1. A railroad company made a mortgage to trustees to secure 400 of its bonds for $1,000 each. By mistake the company issued and sold 420, instead of 400 bonds. To each bond was attached a certificate showing that it was secured by mortgage, and that the amount of such bonds, issued and to be issued, was not to exceed $400,000. The holders of the twenty extra bonds bought them in ignorance of the over issue. Held — That the company is estopped to deny that the twenty extra bonds were secured by the mortgage.</p> <p>2. Equitable, as well as legal estoppels, bind privies in estate.</p> <p>3. Such mortgage by estoppel gives the holders of the twenty bonds an equitable lieu, which, though unrecorded, is superior to the lien given by unrecorded income bonds, subsequently issued; but inferior to that given by a subsequently recorded mortgage.</p> <p>4. Where B. purchased third mortgage bonds without notice of the over issue, but with notice of the income bonds, the holders of the latter will be substituted to the legal advantage which B. acquired by the registration of the third mortgage, and consequently to a preference over the holders of the twenty extra bonds.</p>

<p>APPEAL FROM GREEN CIRCUIT COURT.</p> <p>1. The jurisdiction of equity to enforce a trust, and to prevent further perversion and abuse of it, by the removal of the delinquent trustee, is undoubted.</p> <p>2. Where one was both executor and trustee under a will, and made no settlement of his accounts as executor, he should be deemed to have held the fund as trustee after two years from the date of his qualification; and being charged by the will with the control of a legacy for the education of the legatee, and failing so to appropriate it, he was properly held liable to compound interest on the legacy. (2 Reo. Stat., secs. 24, 25, pp. 506-7.)</p> <p>3. Section 2, p. 2, of 2 Rev. Stat., does not apply to a legacy which the will directs to be paid out for the education of a legatee in such a way, and at such times, as the executor may deem proper.</p>

<p>CASE 36 — PETITION EQUITY</p> <p>cited Act of 1857, Stanton’s Code, p. 63; 1 Met., 484; Story on Part., secs. 152, 153; 2 Story’s Eq., sec. 769 ; 2 Kent, 676.</p> <p>cited 1 J. J. M., 203; 3 J. J. M., 293 ; 3 Marsh., 459 ; 5 /. /. M., 181.</p>

<p>AITEAL FROM FLEMING CIRCUIT COURT.</p> <p>1. A paper purporting to be a will was written on the first, and a little over half, of the second page of .a sheet of cap paper. The sheet was then folded in the form of a letter, so as to inclose the half which contained the writing within the other half. It was sealed with wax, and was afterwards presented by the person who had subscribed it, to three persons to be by them witnessed as his will ; they, at his request, wrote their names on the outside as witnesses, neither of them seeing or knowing the contents. Their names were on the fourth page, or outside of the sheet. ifeZd — 'That this was not a sufficient attestation under the statute. (2 Rev. Stui., sec. 5, p. 458.)</p> <p>2. A will, to be valid under this section, must be in writing, with the name of the testator written at the foot or end thereof. The names of the attesting witnesses must, in like manner, be written at the foot or end of the instrument.</p> <p>3. One of the objects of these provisions is to insure the identity of the instrument. Another object is to prevent fradulont additions to, or alterations of, the instrument.</p> <p>4. Where there is an unnecessary and unreasonable blank apace between the conclusion of the will and the signature of the testator, or the names of the witnesses, such will is not sufficiently executed or attested. (1 Williams on Executors, p. 67.) As to what would constitute such unreasonable blank space, no general rule can be laid down.</p>

<p>CASE 38 — TRAVERSE</p> <p>cited Sess. Acts, 1833-4, p. 481; Rev. Slat., chap. 103, secs. 14, 29, 30, 31; 11 Peters, 420; 6 Howard, 507; 4 J. J. M., 30.</p> <p>eited 2 /. /. M., 227; 5 Daria, 101; 17 B. Mon., 178; Bedfield on Railways, 136; 58 Eng. Com. Law Rep., 454-; 1 Barb., 294.</p>

<p>CASE 39 — PETITION ORDINARY</p>

<p>CASE 1 — MOTION</p> <p>cited Grim. Code, secs. 88, 89 ; 5 B. Ad., 86; 2 M. W., 894; 1 Greenleaf, sec. 41 ; 2 Rev. Stat.,p. 127.</p> <p>cited 3 Phill. on Ev., pp. 177, 489.</p>

<p>CASE 2 — INDICTMENT</p> <p>cited Wharton's Crim. Law, 629.</p> <p>cited 2 Bisk. Crim. Law, sec. 966; Wharton's Crim. Law, sec. 285 ; 2 B. Mon., 249; Crim. Code, secs. 121, 123, 128.</p>

<p>CASE 3 — FORCIBLE DETAINER</p> <p>cited Civil Code, sec. 1-61.'</p> <p>cited Civil Code, secs. 500, 502, 517.</p>

<p>CASE 4 — INDICTMENT</p> <p>cited Crim. Code, sec. 229 ; Tenn. Code, secs. 4677, 4680, 4686; 1 Rev. Stat., 389; Whart. Amer. Crim. Law, pp. 656, 657; 2 Russel on Crimes, 184, 185; 2 Johns., 477.</p> <p>cited 2 East's Cr. L., 772; 2 Johns., 477 ; 11 Wend., 129; 5 Binney, 5; 1 Mass., 115; Tillass., 14; 3 Conn., 186; 11 Ohio, 436; 11 Verm., 650; 1 Bish. Cr. L., sec. 597; 2 Russ, on Crimes, 116 ; 14 Ga., 422; 18 Ala., 541; 2 Leigh., 708.</p>

<p>CASE 4 — INDICTMENT</p> <p>cited Grim. Code, sec. 123; Wharton's Am. Gr. L., 804; 1 Archb. Grim. Prac., 5, 276; 2 Rev. Stat., 812; 2 B. M., 417; 3 Dana, 70.</p> <p>cited Grim. Code, sec., 349.</p>

<p>APPEAL FROM GARRARD CIRCUIT COURT.</p> <p>1. An inquest under section 8 of Revised Statutes (2 ml., p 287) held not responsive to the writ, and therefore insufficient, because it merely ascertained the aggregate amount of damages, without showing the grounds on which the estimate was based. (3 B.Mon., 302.)</p> <p>2. Incidental benefits resulting from the establishment of a road or passway, cannot be set off against the damages for the land taken, and the additional fencing.</p>

<p>CASE 6 — PETITION EQUITY</p> <p>cited 1 Rev. Stat., 546; 4 Johns. Chy., 459 ; 5 Lilt., 351; 7 Dana, 495; 5 Walls and S., 145; 9 Iredell, 382; 11 Ala., 880; 2 Barb., 475; 4 Sanford’s Ch., 498; 6 Johns. Ch., 437; 4 Wheat., 500; 5 Johns., 335, 345 ; 2 Caines, 327; 10 N. H., 458 ; 10 Paige, 210 ; 1 Litt., 298; 2 B. M.J 156; 4 B. M., 462; 4 Dana, 253; 1 Met., 350; 9 B. Mon., 514.</p> <p>cited 17 B. M., 42; 4 Johns. Ch., 450; 7 B. M., 95.</p>

<p>APPEAL FROM GREENUP CIRCUIT COURT.</p> <p>1. The absence of the principal counsel, who had not attended the court for two years, is no ground of continuance, especially where no additional preparation is ■expeeted.</p> <p>2. Where the parents are divoreed, although, prima facie, the rights and duties of the father with respeet to the child are superior to those of the mother ; yet, the eourt should confide its custody to the parent most capable; and if neither be capable, the trust may. be devolved on a stranger.</p>

<p>APPEAL FROM MEADE CIRCUIT COURT.</p> <p>1. By sec. 450 of the Code, personal judgment cannot be rendered against a defendant who has not appeared, although summoned as provided in see. 86.</p> <p>2. Nor can personal judgment be rendered against a mere garnishee, who is cited only by service of the attachment, and who did not appear, nor was required to appear, to disclose facts. (Code, see. 248 ; 3 Met., 177.)</p>

<p>APPEAL FROM MALEAN CIRCUIT COURT.</p> <p>Among wrong-doers the law raises no implied promise or right to contribution. But the replevy of a judgment against them satisfies it, and the transaction becomes a contract, by which each obligor becomes bound for contribution to the one who pays it.</p>

CASE 10 — MOTION cited secs. 1, 2, 4, 6, and 13, art. 12, and secs. 3 and 6, art. 9, chap. 83, 2 R. 8.; secs. 10 and 14, art. 1, chap. 5, 1 R. 8.; sec. 9, art. 3, chap. 63, 2 R. S.; Civil Code, secs. 118, 125, and 484; ex parte Robert B. Randolph, 2 Brock., 447 ; Watson vs. Gabby, 18 B. Mon., 662; Jones ¿f Lee vs. Bullock, Sf-c., 3 Bibb, 469; Sneed’s ex’r vs. White, 3 J. J. Mar., 526; Norton vs. Roberts, 4 Mon., 491 ; Bacon’s Abridgment, 7 veil., “ Pleading a recovery in a…

<p>CASE 11 — BASTARDY CASE</p> <p>cited 3 sec., chap. 6, Rev. Stat.', 2 Met. 383.</p> <p>cited Miller vs. Commonwealth, ante, p. 14.</p>

<p>CASE 12 — PETITION ORDINARY</p>

<p>CASE 13 — INDICTMENT</p> <p>cited 1 Rev. Stat., 381 ; Whart. Am. Cr. Law, 2 vol., secs. 1604, 1695, 2770, 2774; Bishop'Grim. Law, 2 vol., sec. 966; 1 Hale P. C., 532; 1 Hawk. P. C., 212 ; 2 East. P. C., 706; 4 Bl. Corn., 242; 4 Ohio, 530; L. Wheat. Inter. L., 13, 516; Ilalleck’s Inter. L., 792; Hume Cr. L., 50; Allison Cr. L., 627.</p>

<p>CASE 14 — PETITION EQUITY</p> <p>cited Story on Part., ch. 7, sec. 103 ; Ibid, ch. 8, secs. 138, 139.</p> <p>cited 4 Met., 246 ; 16 B. M., 264.</p>

<p>CASE 15 — PETITION ORDINARY</p>

<p>CASE 16 — PETITION EQUITY</p> <p>cited Rev. Stat., art. 5, ck. 86.</p>

<p>CASE 17 — FORCIBLE ENTRY AND DETAINER</p> <p>cited 3 Met., 251 ; Civil Code, sec. 767; 3 Bibb, 100 ; 9 B. M., 239 ; 7 J. J. M., 252; 1 Dana, 227; 2 Bibb, 431 ; 3 Mon., 263; 4 Bibb, 501; 1 J. J. M., 45; 1 Marsh., 54.</p>

<p>APPEAL FROM JEFFERSON COUNTY COURT.</p> <p>1. Where the traverser of an inquest of forcible entry and detainer fails, on the Calling of the cause for trial, to appear, either by himself or counsel, the court may render judgment in favor of the traversee, although the. latter may not have joined issue on the traverse. (Civil Code, sec. 613.)</p> <p>2. The motion of the traverser made the same day, to set aside the judgment, was properly overruled, as the record shows no reason for sustaining it.</p>

<p>CASE 19 — PETITION EQUITY</p> <p>cited 1 Lead. Gas. in Eq., 65, 71; 9 Paige, 237.</p> <p>cited Story’s Eq., secs. 534, 1268 ; 1 Lead. Cas. in Eq., 94, 103; 2 Marsh., 388; 1 Met., 618; Hard.,-535; 5 Litt., 201.</p>

<p>CASE 20 — MOTION</p> <p>cited Civil Code, sec. 434; 5 J. J. M., 164; -2 Rev. Stat., 400.</p>

<p>CASE 21 — PETITION EQUITY</p> <p>cited 9 Dana, 52; 2 B. M., 142; 2 Kent, 126.</p>

<p>APPEAL FROM OHIO CIRCUIT COURT.</p> <p>1. In granting the wife a divorce from the husband for cr.uel and inhuman treatsnent, an allowance to her of the use of one half his land, worth $1,200, and of the Sitie to half his movables, worth $400, for the maintenance of herself and infant chil-dren, is neither unjust nor unauthorized, she having no property.</p> <p>2. In such case the'court had no power, in awarding maintenance to the wife, to divest the title of the husband’s real estate. (Rev. Stat., sections 6 and 7, chap. 47.)</p>

<p>APPEAL FROM HENRY CIRCUIT COURT.</p> <p>1. A jailer has no authority to take bail, and a bail bond taken by him is not binding on the sureties, either as a statutory or common law obligation. (Criminal Code, secs. 23, 79.)</p> <p>2. The delivery of the defendant from prison, by reason of the giving of such bond, is not a sufficient consideration to uphold it, because it does not exempt the defendant from recapture.</p> <p>3. Such bond can derive no validity from sec.,80 of the Crim. Code. (MS. opinion in Tyre vs. Commonwealth, June term, 1856, overruled.)</p>

<p>APPEAL FROM THE DAVIESS CIRCUIT COURT.</p> <p>1. Gross inequality in the dispositions made by a will, where no reason for it is suggested in the will itself, requires satisfactory evidence that it was the free and deliberate offspring of a rational, self-poised, and clearly disposing mind.</p> <p>• 2. See the opinion for the facts showing incapacity on the part of the testator, and the undue influence exerted by his wife.</p>

<p>APPEAL PROM LOUISVILLE CI-IANOERY COURT.</p> <p>Equitable proceedings for enforcing an equitable lien, or for subjecting a known and described equity,'are not aifected by sections 474, 875, of Civil Code.</p>

<p>CASE 26 — PETITION ORDINARY</p>

<p>CASE 27 — PETITION ORDINARY</p> <p>cited Sess. Acts, 1861-2-3, p. 80 ; Civil Code, sec. 361; 1 Marsh., 290; 1 Hav. Miss. Rep., 102; 3 Parker C. R., 544.</p> <p>cited 6 B. M., 360.</p>

<p>CASE 28 — PETITION EQUITY</p> <p>cited 1 Jarman, 295; Sess. Acts 1838-9, p. 38; 9 B. M., 203; Rev. Stat., sec. 1, art. 2, chap. 46.</p>

<p>APPEAL FROM PENDLETON CIRCUIT COURT.</p> <p>1. In an action of slander, for charging the plaintiff with perjury — plea of justification — proof of the plaintiff’s high characters admissible. (2 Greenleaf, sec. 426.)</p> <p>2. Proof of reiterated utterances of the same or other defamatory words, is also admissible to show the malignity with which the words charged in the suit were spoken. (1 Greenleaf, sec. 52.)</p>

<p>CASE 30 — PETITION ORDINARY</p> <p>cited 1 Rev. Stal.,pp. 264, 265; Civ. Code, secs. 120, 123 ; 1 Bibb, 203; 6 B. M., 101; 11 B. M., 42 ; 6 Dana, 337 ; 2 Marsh., 33 ; 12 B. M., 603 ; 1 Green., sec. 392; 3 B. M., 31.</p> <p>cited 12 B. M., 621; Chitty on Contr.,p. 306; 2 Marsh., 107 ; 3 Marsh., 246; 3 Mon., 167 ; 4 J. J. M., 511; 5 /. /. M., 334.</p>

<p>CASE 31 — PETITION ORDINARY</p>

<p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p> <p>A testator, by Ms will, gave to his “ executors ” the power to sell Ms land, So he exercised only with the consent of his surviving wife. In a subsequent clause, he appointed his wife his executrix and sole representative. Held — That the power to sell was vested in the wife alone,</p>

<p>APPEAL FROM BATH CIRCUIT COURT.</p> <p>See the opinion for the facts showing that the testatrix was competent to make a valid will, and that the disposition made by her of her estate was not the result oj undue influence ; also, that the will was legally published.</p>

<p>ArrEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>1. The statement in a bill of exceptions, that the defendant moved “ the following instructions,” and that the Commonwealth moved “the following,” and that then “ the court gave to the jury the following instructions in lieu of those refused and in explanation of those given,” held sufficient to show that the record exhibited all that were given or refused, (firim. Code, sec. 305 ; 3 Met., 10, 18.)</p> <p>2. An instruction that “ if homicide be committed by a deadly weapon in the previous possession of the slayer, the law implies malice in the perpetrator,” given without qualification, is misleading.</p> <p>3. One who, designing a homicide, drinks to intoxication, and in that condition commits it, is guilty of murder; but drunkenness brought on by sensual or social gratification, with no criminal intent, may reduce an unprovoked homicide from murder to manslaughter; and if transient insanity ensue, although it should not altogether excuse, it should mitigate the crime.</p> <p>4. An instruction that “ where the jury, from the evidence, entertain a rational doubt on the question of insanity, they should always find in favor of sanity,” held erroneous.</p> <p>5. The rational doubt which should acquit, is a doubt as to all or any of the constituent elements essential to guilt. A doubt of sanity should always avail — a doubt Of insanity should not. (16 J3. It/., 591.)</p> <p>6. Moral insanity is now as well understood and established as intellectual insanity. “ The true test of responsibility is, whether the accused had sufficient reason to know-right from wrong, and whether or not he had sufficient power of control to govern his actions.'1</p>

<p>CASE 35 — PETITION ORDINARY</p> <p>cited, 2 Ld. Raym., 909 : 19 Wend, 234; Angelí on Carriers; 1 Conkling Admiralty, 198; 4 B. L., 83; 5 Jacob’s Diet., 387; Elliott’s Debates, 233; Federalist, 67; 4 Met., 385.</p> <p>cited 2 Bonn. Dect., 640 ; Angelí on Carr., sec. 200 ; Story on Bailm., sec. 526 ; 1 Phill. on Ins., secs. 224, 225; T6 Johns., 449 ; Wheat. Int. L., 590 etseq. and notes; 4 Met., 402.</p>

<p>CASE 1 — FORFEITED RECOGNIZANCE</p>

<p>CASE 2 — PETITION ORDINARY</p> <p>cited 5 B. M., 92 ; 7 B. M., 442; Civil Code, 128, 31, 132; 2 Met., 94, 96; 9 Dana, 554; 2 Marsh., 300; 3 J. J. M., 16; 5 B. M., 241; 1 Litt., 50; Litt. Scl. Gases, 471; 8 B. M., 404 ; 2 Met., 530.</p>

<p>APPEAL FROM ALLEN CIRCUIT COURT.</p> <p>1. There are two modes of supplying lost records — 1. A commissioner may be appointed by the court whose records have been lost or destroyed, who shall take proof, report, &c> (1 Rev. Stat., 467); or, 2. The court, upon satisfactory proof, may substitute a paper for the one lost or destroyed. (8 Dana, 201.)</p> <p>2. An indictment lost or destroyed cannot be supplied by a subsequent indictment found by a different grand jury. The only effect of such proceeding would be the institution of a new prosecution, in which the limitation would run up to the time the new indictment was returned into court.</p> <p>3. The destruction of an indictment does not abate the prosecution.</p>

<p>APPEAL PROM TULASKI CIRCUIT COURT.</p> <p>W. sold to H. lands which were to be, and were, conveyed to the use of the wife and children of H. The consideration of the sale was a claim H. assumed to have to a slave in Virginia. As that claim proved unavailable and of no value, the lands were virtually a gift to the wife and children, and were not subject to the debts of H. (1 Dana, 356.)</p>

<p>CASE 5 — INDICTMENT</p>

<p>CASE G — PETITION EQUITY</p> <p>cited 1 Co. Lyt., 203 ; 1 Lead. Cas. Eq., 412; 5 B. M., 116 ; 14 B. M., 247 ; 2 Met., 507; 18 B. M., 368; 2 Rev. Stat.,p. 32 ; 17 B. M., 55.</p> <p>cited 17 B. Mon., 58; 3 Met., 524.</p>

<p>CASE 7 — PETITION EQUITY</p> <p>cited Story's Eq., sec„ 699 .; & Dana, 246; 6 B.M., 393.</p>

<p>CASE 8 — PETITION ORDINARY</p> <p>cited 14 B. M., 542; 1 Met., 19.</p>

<p>APPEAL FROM GARRARD CIRCUIT COURT.</p> <p>1. An action against a defendant for creating a private nuisance is an action for an injury to the person, and no verification of the petition is necessary. (Civil Code, seo, 143.)</p> <p>2. No instruction should be given, based on a ground of defense not set up in the answer.</p> <p>3. Generally, the creator of a private nuisance is liable to any person thereby injured, without notice to desist; but the continuer of a nuisance is not liable for damages without a request to remove it. (5 Co he, 101; Wilks, 583; 1 Ch.Pl., 89.)</p>

<p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>Where tlie commissioner fails to advertise the sale of land as directed by the judgment, and the land is sold for less than its value, the sale should not be confirmed.</p>

<p>CASE 11 — WILL CASE</p> <p>cited 13 B. M.,210’, 4. J. J M., 537 ; 1 Bibb, 352; 2 J. J. M., 343.</p>

<p>APPEAL FROM LOGAX CIRCUIT COURT.</p> <p>1. A reply to a set-off denying the correctness of each and every item of debit in an account, is insufficient.</p> <p>2. In an action on a contract by which the plantiff agreed to serve the defendant as overseer for a year, at a fixed price, the readiness of the plaintiff to perform, and his prevention by the defendant, entitle the former only to the actual damages sustained, and not to the full sum agreed to be paid for the entire year. (6 Dana, 352.)</p>

<p>APPEAL FROM TRIGG CIRCUIT COURT.</p> <p>1. A sheriff levied on property of the principal debtor sufficient to satisfy the execution, and, by negligence and unreasonable delay, released the levy, became responsible to the creditor whom he paid, and took an assignment of the execution to himself, and levied it on the property of the surety. Held — That the latter was released from the debt, the sheriff knowing he was surety only. (7 J. J. M., 90 ; 2 Dana, 397.)</p> <p>2. The decision in 5 J. J. Marshall, 364, overruled.</p>

<p>APPEAL FROM THE HENDERSON CIRCUIT COURT.</p> <p>1. There was, in 1858, no difference in the legal effect of a contract to pay dollars, and a more specific contract to pay the amount in gold or silver, each form of contract importing the same thing.</p> <p>2. The payee of a note, dated and due in May, 1858, in which it is stipulated that the amount is to be paid in gold or silver, is entitled to no other judgment than that which would have been 'the only proper one on a note for dollars only.</p>

<p>APPEAL FROM BOONE CIRCUIT COURT.</p> <p>Where a life estate in slaves is the matter in controversy, and the value is not alleged in the pleadings, the verdict of the jury must fix the value, which, being less than fifty dollars, the court of appeals has no jurisdiction.</p>

<p>APPEAL FROM WASHINGTON CIRCUIT COURT.</p> <p>A buggy and harness were purchased at a commissioner’s sale, and was left by the purchaser in the possession of the former owner, who afterwards exchanged it for another buggy which he repaired and used as his own. These facts were evidence that he was the real owner.</p>

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>An action brought in April, 1863, for fraud or mistake in the execution of a deed dated in November, 1852, is barred by lapse of time. (Revised Statutes, section 5, chapter 53.) ■</p>

<p>CASE 18 — PETITION EQUITY</p> <p>cited 1 Dana,, 37; 6 Dana, 388.</p> <p>cited Civil Code, sec 155.</p>

<p>CASE 19 — FORFEITED RECOGNISANCE</p> <p>cited Grim. Code, secs. 69, 89, 94; 2 Met., 382; 1 Met., 380; Bac. Abr., title Bail.</p> <p>cited Grim. Code, secs. 88 to 95, 227 ; 3 Met., 384.</p>

<p>CASE 20 — PETITION ORDINARY</p> <p>cited 7 Dana, 314; 7 Mon., •293 ; 1 Marsh., 490..</p> <p>cited 2 Will, on Ex.,p.'93\, note3.</p>

<p>ArrEAL FROM LINCOLN CIRCUIT.’COURT-</p> <p>1. In an action on a note, the defendant pleaded that it contained $160 of usurious' interest; the plaintiff replied, admitting that the note embraced^ $36 92 of usury-Upon the vague and unsatisfactory statement of a witness tending to show that there-was-no usury in the note, the-plaintiff' was allowed- to file an amended reply, denying-that it embraced any usury. This-was erroneous and unauthorized by. section 161 of the Civil Code-</p> <p>2. That a surety executed a note on the-payee’s - agreement to procure the signature of another name thereto, with which the-payee failed to comply, is-neither a valid:, defense nor counter claim-. (1 Root, 87-;. 5 Omnch, 351.)</p>

<p>CASE 23 — BILL OF REVIEW</p> <p>cited 5 Dana, 223 ; 5 B. M., 364; 4 Mon., 541; 8 B. M., 367, 119 ; 5 Lilt., 36.</p>

<p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>1. Allegations of value are not admitted by the failure of the defendant to answer.</p> <p>2. The judge might, in such case, render judgment without a jury; but the record should show that he heard evidence as to the extent of damages. (14 B. M., 394.)</p>

<p>CASE 24 — PETITION EQUITY</p>

<p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>1. In a suit by a Wife for divorce, where she appeared to be “in fault,” and the owner of estate worth over $2,0'J0, the husband should not have been subjected to the payment of her costs. (Rev. Stat., sec. 32, chap. 25.)</p> <p>■ 2. “ Costs,” as used in the statute, include reasonable compensation to the wife’s counsel.</p> <p>3. The wife would not be allowed under this statute to tax her husband with the fees of as many as four lawyers.</p>

<p>CASE 26 — MOTION</p> <p>cited Civil Code, secs. 713 to 718.</p>

<p>CASE 27 — PETITION ORDINARY</p> <p>cited Civ, Cade, secs.. 183, S28.</p> <p>cited Civ.. Code, secs* 239,187,188.</p>

<p>CASE 28 — MOTION</p> <p>cited 9 B. Mon., 336.</p> <p>cited Rev. Stat., ch. 58, art. 1, sec. 1; M. 4- B., 1080, 1373.</p> <p>cited ch. 83, art. 1, secs. 1, 2, Rev. Stat.; Ang. 4" Ames. Gorp., sec. 441; 15 Johns., 382.</p>

<p>APPEAL FROM CHRISTIAN CIRCUIT COURT.</p> <p>Where the plaintiff was in possession of a stray horse, which he had never posted, and which he had bailed to the defendant, the plaintiff was entitled, in an action for the recovery of the horse, to a judgment for the horse, if to be bad; if not, for its value. (Civil Code, sec. 418.)</p>

<p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>1. In a suit by an assignee of a chose in action to recover against the assignor on the contract of assignment, it is not necessary for the plaintiff to aver the consideration; and if the amount of the consideration is not shown by the pleadings on either side, the recovery should be for the amount of so much of the debt assigned as remained uncollected. (Section 7, chapter 22, 1 Revised Statutes, 269.)</p> <p>2. The case in 16 B. Mon., 343, which decides differently, overruled.</p>

<p>APPEAL PROM DAVIESS CIRCUIT COURT.</p> <p>1. A valid trust of personal properly may be created by a parol declaration, which may be sustained by parol evidence. (Hill on Trustees, 60.)</p> <p>2. An action to enforce such trust would not be defeated by proof of the coverture of one of the plaintiffs, where the proof also showed that her husband was insolvent, an habitual drunkard, and made no provision for the support of his family.</p>

<p>CASE 32 — AGREED CASE</p> <p>cited 1 Bibb, 273; 6 Dana, 232; 7 B. M., 283 ; 22 Ind. Rep., 282.</p> <p>cited 1 Marsh., 161; 3 Sug. on Vend.,p. 63.</p>

<p>APPEAL PROM MARION CIRCUIT COURT.</p> <p>1. A sheriff’s return to a notice of a motion, that he had executed it by leaving a copy with the wife of the defendant, he. not being at home, is prima facie sufficient. (Oiu. Code, sec. 693 ; 1 Met., 20, 146.)</p> <p>2. The death of part only of the defendants does not prevent the issue of an execution to operate against the survivors. (Code, 435.) This applies to lost judgments.</p> <p>3. The court, whose records have been destroyed, may, by motion upon notice, and sufficient evidence, supply the record of a judgment and award execution thereon. (8 Dana, 201.)</p>

<p>CASE 34 — PETITION EQUITY</p> <p>cited Civ. Code, sec. 903 ; 13 B. M., 332; 2 Marsh., 809.</p> <p>eited Rev. Stat., chap. 35, section 13.</p>

<p>APPEAL FROM THE JEFFERSON CIRCUIT COURT.</p> <p>X. A trustee, who was a nominal plaintiff in a ease of forcible detainer, without any beneficial interest, was a competent witness for the plaintiff. (Civil Code, secs. 674, 670.)</p> <p>2. Where the evidence sustaining the plaintiff’s claim was uncontradicted, it was not erroneous to instruct the jury to find for the plaintiff, if they believed the testimony.</p>

<p>CASE 36 — PETITION ORDINARY</p> <p>cited Rev. Stat., 63 ; 3 Bouv., 650; 4 Bouv., sec. 3624; 2 Saund. PI. Sf JSv., 785; 9 Johns., 387; 2 Greenl., sec. 433; 5 Gowen, 106.</p> <p>cited Civil Code, sec. 143.</p>

<p>APPEAL PROM LINCOLN CIRCUIT COURT.</p> <p>1. Scott sued Cook for slander, in charging him with perjury in testifying that a lot of com in contest was unsound. Cook justified. The jury found " that the corn was sound, and that plaintiff, Scott, was mistaken as to the soundness thereof, and, therefore, find for the defendant, Cook.” Held — That the verdict did not justify a judgment for the defendant, but would, if it had not been too equivocal, have authorized a verdict for the plaintiff.</p> <p>2. Corrupt motive is indispensable to perjury and all other crimes ; and one having knowledge respecting the fact, who testifies, however positively, only what he believes to be true, can be guilty of no crime, although he was “ mistaken.”</p>

<p>CASE 38 — PETITION EQUITY</p> <p>cited 1 Parsons, 86, 87, 88; 2 Seld., 439; 24 Barb., 356; 22 Ver. Rep., 170; 1 Ala., 366; 1 Seld., 49; 3 Seld., 493; 4 Seld., 422; 1 B. M., 96; Reeve’s Rom. ReL, 258.</p> <p>cited 1 Kent’s Gom., 162; 1 BL Com., 453 ; 1 Mass., 145 ; 1 N. H., 23 ; 1 B. M., 292 ; 5 B. M., 26; 1 East., 67 ; 9 Johns., 293.</p> <p>cited 1 Bl. Com., 431; Justinian, book 4, title 5, sec. 2; 2 Eng. Com. L. Rep., 163; 1 Star Me, 42; 16 Maine, 362.</p>

<p>CASE 39 — PETITION EQUITY</p>

<p>CASE 40 — PETITION EQUITY</p> <p>cited Civil Code, sec. 14; 2 Met., 95; 1 Mon., 194; 3 Mon., 83; 2 /. J. M., 365.</p> <p>cited Civ. Code, sec. 14; 2 Metcalfe, 96.</p>

<p>CASE 41 — PETITION EQUITY</p> <p>cited 8 B. M., 169; 3 B. M., 74; 9 B. M., 337; 3 GreenL, sec. 171; 1 B. M., 385, 333; 9 B. M., 397; Pars. Mer. L., 106; 3 Dana, 557; Story on Bills, sec. 369.</p> <p>cited Story on Bills, 369.</p> <p>cited Smith’s Mer. L., 303; 7 Mon., 580; 3 B. M., 363; 3 Marsh., 153; 3 Litt., 185; 1 /. /. M., 70 ; 10 Peters, 573 ; 3 Howard, 457.</p>

<p>APPEAL FROM GREENUP CIRCUIT COURT.</p> <p>The lapse of seventeen years from the maturity of a bond, where the obligors continued solvent during that period, although not per se sufficient to authorize the legal presumption of payment, is a persuasive circumstance, in the absence of any demand, recognition, or partial payment, and when slightly corroborated, may be sufficient evidence of payment.</p>

<p>CASE 43 — PETITION ORDINARY</p> <p>cited 2 Rev. Slat., p. 127; 2 Dana, 414) 1 Rev. Stat., 470.</p> <p>cited 4 Met., 113.</p>

<p>APPEAL PROM barren circuit court.</p> <p>1. An agreement of record by the parties “that the verdict of the majority of the jury shall be made the judgment of this court,” was not a submission to arbitrators whose award should be final, but was a mere agreement to dispense with a unanimous concurrence of the jury in the verdict.</p> <p>2. See the opinion for the facts showing that the verdict was not sustained by the evidence.</p> <p>3. The opinion of witnesses derived from a comparison of the disputed signature with the signatures of the same parties to the pleadings, is competent evidence.</p>

<p>APPEAL PROM GARRARD CIRCUIT COURT.</p> <p>1. Where a testator was surety for a debt, and liis executors, by fraud or negligence, fail to make the debt out of the principal, they are liable to the legatees for indemnity.</p> <p>2. A decree cannot be regarded as final where the true amount to be made by the execution thereon is to be determined by future inquiry.</p>

<p>APPEAL PROM GARRARD CIRCUIT COURT.</p> <p>1. The concealment which will authorize an attachment under sub-division 5, of section 221, Civil Code,, involves the intention of the debtor to obstruct his creditors in their legal remedies, which he may accomplish by secreting himself on his own premises, or by departing secretly from his residence to some other place in or out of the same county.</p> <p>2. The. court may. order a sale of attached personal property, under section 239 of the Code, upon parol proof, and the correctness of such order will.be presumed in the absence of anything showing the contrary.</p> <p>3. By sections 253, 405 of the Code, the court is required to prescribe the credit on which real estate is to be sold, and has no power to fix a shorter credit than three ■months, for any part of the purchase money, nor a longer credit then twelve months for the whole. A sale for half the purchase, payable within less than a month, was erroneous and prejudicial to the debtor, aiad should be set aside by the court of appeals, although not excepted to in the circuit eourt, the debtor having been constructively .summoned, and not having appeared.</p>

<p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>1. The word void, as used in the statutes authorizing the sale of infants’ real estate, and in the decisions of this court upon those statutes, should be construed as meaning voidable only.</p> <p>2. Although it may not appear from the record that the commissioners to value the estate of the infants were sworn, it cannot be presumed that they, in fact, were not sworn as the law requires.</p> <p>3. The recital in the decree of sale that the guardian had given the required bond, authorizes the inference that it was given before, or simultaneously with, the decree, although dated the day after.</p> <p>4. The failure of infants, who were summoned, to answer, was an error for which they might reverse the judgment, but it would not avoid, or make voidable, the judgment or sale.</p> <p>5. It is the policy of the law to sustain all judicial sales, regardless of slight and minute defects. (8 i?. Hi., 105.)</p> <p>6. The acts of 1861 and 1862, authorizing the confirmation of defective sales of infants’ real estate, do not operate to impair the obligation of contracts, or to divest vested rights, and are constitutional.</p> <p>7. Retroactive statutes are not, merely as such, unconstitutional.</p>

<p>CASE 48 — PETITION EQUITY</p> <p>cited 13 B. M., 175; 18 B. M., 60 ; 10 Pa. Rep., 20 ; 1 Abbott, 187.</p>

<p>CASE 49 — PETITION ORDINARY</p>

<p>APPEAL PROM PENDLETON CIRCUIT COURT.</p> <p>1. An action by equitable proceedings does not stand for trial at the term at which an answer, making an issue of fact, is filed, unless the plaintiff consents that the statements of the answer may be taken as true.</p> <p>2. Interest stipulated to be paid on the deferred payments for land, as part gf the price, is not usurious.</p>

<p>CASE. 51 — PETITION EQUITY</p> <p>cited Civil Code, secs. 155; 257, 153; 1 Slat. Law, 301; & B. M., 1-89.</p>

<p>CASE 52 — PETITION ORDINARY</p> <p>cited 18 B. M., 225; 3 Met., 221; 2 Parsons on Contr., 486; Civ. Code, secs. 126, 127; 3 Met., 323; 2 Met., 144.</p> <p>cited Civ. Code, secs. 126,127, 117 ; 1 Met., 485; 4 Met., 58.</p>

<p>CASE 53 — PETITION ORDINARY</p> <p>cited 2 Smith's Lead. Cas., 435.</p>

<p>APPEAL PROM KEN.TON CIRCUIT COURT.</p> <p>1. Although the Covington and Cincinnati Bridge Company is a private corporation, yet, as the bridge, when completed, is to be used by the public as a common highway, the Legislature had constitutional power to authorize the company to take, under proper restrictions, private property for its use. The same principle has been uniformly applied to turnpikes and railroads.</p> <p>2. The provisions of the charter which require the jury to assess the cash value of the property to be condemned, and which allow the company, when they may wish to use the property pending an appeal from the assessment, to deposit the amount in any specie-paying bank in Covington to the credit of the proprietor, were intended to secure to the latter the cash or specie value of the property.</p> <p>3. This interpretation does not involve the constitutionality of the “legal tender ” act of Congress, which has no application to this charter or to any assessment under it.</p> <p>4. The tender or deposit of depreciated paper, even it be a legal tender for an antecedent debt, was not a performance of the conditions created by the charter, and gave the company no right to the possession of the property.</p> <p>5. As the owners were entitled to the ground until the assessment and payment of its value, the value at the time of the trial of the appeal was the true measure of assessment.</p> <p>6. Where the property sought to be condemned had been conveyed to the separate use of a married woman, and was subject to a lien of the vendor, the judgment should have been for payment to her separate use, whenever the vendor should waive his lien.</p> <p>7. Where a conveyance of land had been signed by a father to his son, and deposited with a third person as an escrow, to be delivered on conditions which had not been fulfilled, judgment should have been for payment of the value to the father.</p>

<p>APMAL FROM BOURBON CIRCUIT COURT.</p> <p>1. A lien for the purchase money reserved by a vendor in a conveyance to his vendee, is “ a bona fide encumbrance’’ within the meaning of the statute regulating sales of encumbered property under execution. (Sec. 1, art. 15, chap. 36, Rev. Stat.)</p> <p>2. The purchaser, under execution of property so encumbered, takes only a lien for his purchase money and interest, which, however, he may convert into a good title, by removing the encumbrance “ by suit,” before the institution of equitable proceedings by other creditors.</p>

<p>APPEAL PROM HARRISON CIRCUIT COURT.</p> <p>A vendee, under a deed defining the boundaries of the land, took possession in 1837, intending to hold all that had been conveyed, but, through mistake as to his eastern corner and line, he left out a slip of 47 acres, a fraction of which slip had been occupied since 1834, under an adversary claimant; but there had been no adverse possession, actual or constructive, of any the residue, until eight years before the vendee sued. Held — That he was entitled to recover the 47 acres, except the fraction so occupied since 1834. (2 B. Mon., 306.)</p>

<p>CASE 57 — PETITION ORDINARY</p> <p>cited Civil Code, sec. 371; 1 Met., 548; 13 B. M., 460.</p>

<p>CASE 58 — PETITION ORDINARY</p> <p>cited 16 B. M., 201; Civil Code., sec. 351.</p> <p>cited Edwards on Bills, 323.</p> <p>cited 2 Litt., 248; 8 U. 8. An. Dig., 583; 1 Greenl. Ev., sec. 421; 1 /SWA. Ev.,p. 92; 2 Roll. Mr., 676; 18 B. M., 295; 3 Met, 313; 1 Mel., 11; Civ. Code, sec., 351; Edwards on Bills, 323; 2 Met., 535.</p>

<p>APPEAL FROM CLARKE CIRCUIT COURT.</p> <p>1. A premature judgment on constructive service of process is a clerical misprision, and, as there was no motion to correct it in the circuit court, it cannot be reversed. (Code, secs. 577, 578.)</p> <p>3. A decision, though erroneous, cannot be reversed, unless prejudicial to the appellant.</p> <p>3. Notes exhibited with a petition against defendants constructively summoned, are prima facie genuine, and no proof aliunde is necessary.</p> <p>4. The presumption will be indulged that a sheriff discharged his duty, by first serving'attaehments that issued on the petition first filed.</p> <p>5. An allegation that the debtor had been more than thirty days voluntarily within the Confederate lines, supported by the proper affidavit, may be taken for confessed.</p>

<p>CASE 60 — PETITION EQUITY</p>

<p>CASE 61 — PETITION EQUITY</p> <p>cited 3 Binney, 366-70; 10 Conn., 480 ; 2 Barb., 94; 14 Pick., 198; 10 Mass., 427; 1 Nott 4 Me., 237; Dudley's Eq., 14, 18, 23; 3 Story, 755,763; 2 Barb., 94; 16 Vermont, 206, 596; 1 Texas, 151; 5 Litt., 12; 2 Gill 4 3., 209; 4 Grot., 472; 8 Humph., 503; 2 Met., 156; 1 Paige, 316; 24 Pick., 261; 15 Maine, 429; 18 Conn., 410.</p> <p>cited 14 B. M., 532; 2 Revised Statutes, p. 22.</p>

<p>APPEAL PROil NICHOLAS CIRCUIT COURT.</p> <p>1. A devise to several as joint tenants, some of whom died leaving children, after the making of the will in 1847, but before the death of the testator in 1859, is within the lsi section of chapter 46, Revised Statutes ; and the effect of the devise must be determined by that section.</p> <p>2. Section 26, of the chapter on Wills, applies to the preceding sections of that chapter, and not to chapter 46.</p> <p>3. In the construction of statutes, effect must be given to every provision except in cases of irreconcilable incongruity ; and there is no such incongruity in the provisions referred to. (3 Mar., 80.)</p>

<p>CASE 63 — PETITION ORDINARY</p> <p>[This case was decided December 14, 1863, and the opinion,, then delivered and ordered to be published, was mislaid.]</p>